A blog on eminent domain, land-use, and related matters.

Monthly Archives: December 2009

As both faithful readers of this blog know, Detroit has pretty much reached the end of its rope, and faced with the departure of its industry as well as more than half of its population, is increasingly turning to the idea of using the vacant land where homes and businesses once stood for agricultural pourposes. As the Los Angeles Times put it recently, in “a city where there are no major grocery store chains, and more that three-fourths of the residents buy their food at convenience stores or gas stations, the idea of having easy access to fresh produce is appealing.” P.J. Huffstutter, Investors See Farms as a Way to Grow Detroit, Los Angeles Times, Dec. 27, 2009, at p. A3.

We have noted this phenomenon in our earlier posts (see http://www.gideonstrumpet/?p=305 and http://www.gideonstrumpet/?p=331 ) and we wish all those veggie-loving Detroiters the best of luck in pulling this one off, even as our curmudgeonly side wonders how many Detroiters will actually abandon fast-food hamburgers and fries in favor of Ceasar salad and boiled cauliflower. But be all that as it may, another new idea has come to Detroit, that is not exactly consistent with the vision of Motor City as the urban truck garden of the Midwest.

Www.thetransportpolitic.com of December 21, 2009, reports that Detroit is well along the way to glomming on to federal funds that along with some earlier private contributions would enable it to build a trolley line running for 3.4 miles along Woodward Avenue, that city’s main drag. What’s wrong with trolley cars, you ask? Actually, nothing. Your faithful servant sort of likes them. He used to ride them regularly as a young gossoon, and always thought that the ride was fun. Last time we rode a trolley car, was in Hong Kong where, accompanied by Number One Son, we took a ride from one end of the line to the other to take in that city’s sights. And a fun ride it was.

But the problem in Detroit is that it is not exactly overflowing with tourists eagerly seeking to explore the Motor City by trolley. Besides, as noted, the whole shebang is planned to be only 3.4 miles long. So the question asks itself: who will ride those trolleys, from where to where? A hint of an answer to these questions is provided by the trolley line’s proponents who according to The Transport Politic’s dispatch, only want to “revive the city’s spirits and potentially its economy.” For that they mean to blow some $125 million? Wouldn’t it be cheaper to revive their spirits by judicious consumption of some bottled ones? In fairness, we note that they hope for an eventual extension of the 3.4-mile line to a full 8 miles, at a cost of $425 million. Still, if you ask us, blowing $125,000,000 to “revive the city’s spirits” seems a bit steep.

Besides, we have trouble envisioning all those agricultural workers shouldering their hoes and pitchforks and taking the trolley to reach the downtown urban truck farms. And if not they, then who will ride those trolleys?

This news item kinda reminds us of Brendan Behan’s line about his inability to envision a human condition so wretched that the appearance of a policeman couldn’t make worse. That was hyperbole. Clever but hyperbolic. Still, when the government sets out to help the local private market, it may not be a bad idea to be skeptical. Case in point: this dispatch from Providence, Rhode Island.

As anyone who has gone shopping during the mercantile saturnalia that follow Thanksgiving knows, going out there on Black Friday and thereafter is not for the weak of limb and short of wind. It can be a zoo out there. And one phenomenon of the season, that is worrisome to merchants is the seasonal parking shortage. So the city of Providence decided to give the shopping public and the merchants striving for their fair share of pre-Christmas spending, a break. The city announced that during the holiday shopping season the public could park free on downtown city streets — parking meters would not have to be fed one’s change, and shoppers could park indefinitely without fear of getting a ticket. Sounds great. But did it work? No.

It turned out that, whereas shoppers get to shopping after 9:00 a.m. when stores are open, downtown government workers are already at work by that time. So those workers, being no dummies, proceeded to park on the street before the arrival of shoppers, secure in the knowledge that parking limits would not be enforced. So by the time the shoppers got downtown, all parking spaces were taken by public employees’ cars that once parked, stayed put all day long.

It seems like nature does imitate art. It was only a few days ago, on December 6th, that we took note in our post of that date, of folks without any discernible credentials in eminent domain, pontificating in public about the headline-grabbing condemnations in New York – like the Atlantic Yards project in Brooklyn, that was recently rubber-stamped by the New York Court of Appeals, and the more recent Kaur case in which the New York Appellate Division said “No!” to Columbia University’s effort to take over a neighborhood in Manhattanville, for its expansion, holding that the studies leading up to the finding of “blight” were so badly performed that the conclusion that the subject properties were blighted, was insubstantial and not a valid predicate for the taking.

Now, we have just come across an item that makes our point in spades. The December 15th on-line post of Fox News has published a piece by Andrew J. Napolitano, identified as “Judge” and “Fox News Channel’s senior judicial analyst” (see Andrew J. Napolitano, We’re Still Wrangling over Eminent Domain, www.foxnews.com/opinion ) In it, Judge Napolitano sets out to inform the Great Unwashed about what’s what in eminent domain law. Perhaps, as they say in New York, he shoulda stood in bed. His effort reminds us of the Peanuts cartoon strip in which Lucy, the bossy little girl, informs her friends that knotty pine is made out of oak trees. So how does Judge Napolitano go wrong? Let us count the ways.

● First, he gives us a history lesson and tells us that in the olden days, when the U.S. Constitution was not yet a gleam in the eyes of folks like Madison and Jefferson, “when the government wanted private property for its own uses, or to give it to those it favored, it simply seized the property, without regard to the rights and wishes of its lawful owner….“ Er, not quite, Your Honor.

Seizing land from its rightful owners is risky business that over the centuries has been a fruitful source of violent feuds among individuals, civil wars (see http://en.wikipedia.org/wiki/English_Civil_War), and is considered a casus belli among nations. When the British monarch, King John, forgot that, he found himself propped up against an oak tree in 1215, with a sword against his neck, and the Barons of England suggesting that the sword would be sheathed if His Majesty would kindly sign the Magna Carta that among other things, promised payment for property taken earlier and provided that “no freeman shall be disseized of his lands, except by the law of the land and the judgment of his peers.” His Majesty, being no fool, signed.

Contrary to what many (most?) American judges seem to believe, for centuries before the enactment of the U.S. Constitution, British land takings (or cases of compulsory purchase, as they say over there) were tried in court, before juries. See DeKeyser’s Royal Hotel v. The King, 2 Ch. at 222 (1919) in which after reviewing British history, the British Court of Appeal tells us that at least after 1708 “the land of a subject could not be taken against his will except under provisions of an Act of Parliament,” and that “in default of agreement [on compensation] with the owners, the true value [was] to be ascertained by a jury.” And in the famous Case of the King’s Prerogative in Saltpetre, 77 Eng. Rep. 1294 (K.B. 1607), the King’s Bench held that where agents of the crown entered privately-owned land and removed quantities of saltpeter for the manufacture of munitions for the army, the crown would be immune to a claim of trespass (since this was an activity in defense of the realm), but it still had to pay for the removed saltpeter.

But what if the crown went ahead and just took private land lawlessly? You’ll find an answer to that in Baron De Bode’s Case, 8 Q.B. 854 (1845): a trial by jury. Concluded the court: “Therefore, to try the several issues above joined, the Sheriff of Middlesex is commanded that he cause to come before our said lady the Queen, . . . wheresoever she shall then be in England, twelve good and lawful men of the county of Middlesex, qualified as by law is required, by whom the truth of the matter may be better known. . . ” since the parties “have put themselves upon the said jury.”

● Second, contrary to what Judge Napolitano tells us, it is not true that “[m]ost of the litigation and nearly all published court decisions over government acquisition of private property are about ‘public use,’ not about just compensation.” Not even close, your Honor. For the past 35 years (since 1974 to be exact) your faithful servant has been editor and publisher of Just Compensation, a monthly report on eminent domain and inverse condemnation law. You can check it out by clicking on the phrase Just Compensation in the blogroll on the right side of this page. What that means is that your aforementioned servant has had to read every single cottonpickin’ published eminent domain and inverse condemnation opinion that came down during that time. Talk about suffering! To paraphrase that famous old song, nobody knows the drivel we have seen.

Anyway, until about 1987, reported cases dealing with the right to take were so rare that we didn’t even have a separate category for them in the Just Compensation index. But in the mid-1980s their numbers began creeping up, and chastened by adverse comments of our subscribers who started complaining about having to find right-to-take cases under the catch-all phrase “Other Cases of Interest,” we added a separate section on right to take law in 1987. At that time, there would be a couple of right-to-take cases per month – now, it’s more like a half dozen. All this as opposed to some 30 or so montly cases involving compensation issues. Moreover, pace Judge Napolitano, right-to-take cases rarely involve issues of “public use.” Typically, the right to take is opposed on grounds of defective statutory authorization, lack of necessity, the failure to follow legislative authorization, excess condemnation, more necessary public use, etc.So we suggest that Judge Napolitano talk to some condemnation lawyers and ask them how many right-to-take cases they have tried in past 10-20 years, as opposed to how many compensation cases they tried or settled. In his 40+-year career as an eminent domain appellate lawyer, your faithful servant handled maybe three or four right to take cases (including the celebrated 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123 (D.D. Cal. 2001)), as opposed to scores of valuation cases. In fairness to Judge Napolitano, it’s those right-to-take cases that garner the most publicity and legal commentaries, so to a person not familiar with eminent domain law, the frequency of right-to-take cases may be perceived as greater than their actual numbers.

● Third, contrary to Judge Napolitano’s understanding that “strictly speaking,” neither the World Trade Center of blessed memory, nor the LincolnCenter in New York are owned by the government, they are. The former WTC was and its site is still owned by the New York & New Jersey Port Authority which, last time we looked, was a government entity – though “strictly speaking” to borrow Judge Napolitano’s expression, the Authority sure behaved like a private, entrepreneurial entity, and never mind all that “public use” baloney (see our take on that at http://gideonstrumpet.info/?p=282 ). But the WTC site is owned by the government, though it is under a lease to a poor fellow named Larry Silverstein, the holder of the world’s championship “Lucky Pierre” award – he leased WTC two weeks before 9/11. Ouch!

And if Wikipedia is to be believed, the Lincoln Center was acquired by the State of New York which then transferred title to the City of New York, a government entity, though concededly it’s sometimes hard to believe that New York, New York, is indeed a public entity rather than an enterprise run for the benefit of local real estate moguls.

Correction: It appears that we got the wrong Napolitano. The author of that Fox post, is Andrew P. Napolitano, not Adrew J. Napolitano. We have no idea whether they are even related.

What do you do with a dead redevelopment project? Like the one in New London, Connecticut, the one that gave us the wretched Kelo case? In case you are a Martian, dear reader, and don’t know what we are talking about, here is a quick summary. In 2005, the U.S. Supreme Court approved New London’s taking of the homes of Suzette Kelo and her neighbors, in order to turn their sites over to a New England developer who planned to build upscale shops and condos intended to cater to the needs and wants of the well-paid employees of the nearby Pfizer pharmaceuticals research lab. But it turned out that the city’s plans that enabled it to carry the day before the court weren’t worth the paper they were written on. The redeveloper couldn’t even get financing – and that was before the crash. And Pfizer? Oh, that. It recently announced that it is shutting down its New London facility and moving out of town, taking some 1400 jobs with it.

So the 90-acre site of the misbegotten Fort Trumbull redevelopment project has been just sitting there, increasingly looking like a trash-strewn wasteland. And “waste” is the operative word here because the creation of this fiasco cost the taxpayers somewhere around $80 to $100+ million.

Now, in a noteworthy gesture of optimism, The Day, New London’s newspaper, reports that Michael Buscetto, III, a plucky local developer wants to use some of that wasteland to construct “retail space where sports related businesses could set up, including a T-shirt store, print shop and photography studio. A physical therapy group and other health related offices would also fit in. . .” (Kathleen Edgecomb, Buscetto Proposes Sports Complex for Fort Trumbull, The Day, Dec. 12, 2009).Mr. Buscetto is quoted as saying that after his plans are in place, he will see what the cost will be, and then he will seek financing.

We wish him well, and we would cheer for him and his plans if we were assured that he means to invest and put at risk his own money – something the Day article does not make clear. But since your faithful servant is a sucker for clear-eyed entrepreneurship, we offer our best wishes for success of this venture. In the immortal words of that World War II joke punchline: Rots of ruck.

We commend to our readers the post on the site of our fellow blogger Jim Mattson, which you can find here http://mattsonlaw.blogspot.com/. See the post entitled Is the State Conceding its “Condemnation Blight” Battle in the Florida Keys? dated December 7, 2009. Suffice it to say that the state’s “good faith” offers for two parcels were $550,000 and $80,000 respectively. The verdict was $5,060,000 and $450,000 respectively. If you add the rapidly accruing interest, that comes to 13 times the state’s “good faith” offer.

Much could be said about what’s wrong with the Times’ take on this subject. But for now, suffice it to say that the Times editorial argues that the Kaur decision is “out of step with eminent domain law,” when in fact the Appellate Division opinion is largely fact-based. It does not purport to overrule New York law. It only takes note of the faulty procedures used by Columbia, the condemnor (N.Y. Empire State Development Corporation), and their consultants, and the lack of a factual predicate for the desired taking. New York law may permit the condemnation of blighted urban land, but the land must first be determined to be blighted, and that determination must be based on properly established facts, not on a condemnor’s or an influential redeveloper’s desire to seize somebondy else’s land and build on it. And that’s where the Times editorial goes wrong. The Kaur opinion makes clear that Columbia and its allies simply set out to take the subject land but never established properly that it was blighted. This caper brings to mind Justice Holmes’ famous observation in the Pennsylvania Coal case that the fact that the public may want something very much is not a proper basis for taking constitutional shortcuts. In this case, it isn’t even the public — it’s Columbia, a private elite educational institution that tries to gain by taking unfair advantage of property owners in the area it covets.

Perhaps more important, the Times editorial fails to note the the Times has a conflict of interest here. The Times is itself a beneficiary of a redevelopment taking. Its headquarters are located on a site that was condemned by the New York State Urban Development Corporation, the same condemnor that is now trying to do Columbia’s bidding in Manhattanville. The Times got a sweetheart deal on that one, that included public subsisdies running into tens of millions of dollars. See West 41st Street Realty, LLC v. N.Y. State Urban Dev. Corp., 744 N.Y.S. 121 (N.Y.App.Div. 2002). You can read about the aftermath of that taking, and how poetic justice was eventually meted out to the Times, in our article, Bad News for the Times, Los Angeles Daily Journal, March 20, 2009, at p. 6.

That conflict of interest did not prevent the Times from cheering editorially for the wretched Kelo decison when it came down in 2005, but at least the Times had the decency at that time to point out its conflict of interest. This time it hasn’t bothered to do so — this particular conflict of interest evidently is not considered fit to print. Whatever happened to the journalistic mantra that the public has a right to know?

Predictably, major newspapers have been heard from on this one, and commentators are all over the blogosphere offering their takes on this case, and on its juxtapostion with the Brooklyn Atlantic Yards case (which allows a controversial condemnation favoring a major private developer to proceed), thus demonstrating again — if further demonstration were needed — that New Yorkers are self-centered folks who evidently believe (or at least they act on the not-so-tacit premise) that what happens in New York is the alpha and omega of all that is really important. It isn’t, though with the concentration of news media in New York, it may seem so at times.

Eminent domain cases of major doctrinal importance, involving the right to take, were decided in recent years by the courts of Illinois, Michigan, New Jersey, Ohio, Pennsylvania, South Carolina and Oklahoma. They were commented on extensively, but none of them elicited the kind of frenzy that is going on in the wake of the New York cases, and it seems to us that by disregarding them in its Atlantic Yard opinion, the New York Court of Appeals only demonstrated its intellectual parochialism. After all, there may be some doctrinal emulation-worthy wisdom offered by courts west of the Hudson.

It now remains to be seen whether the New York Court of Appeals (that state’s highest court) will take the Kaur case. If it does, that may provide yet another opportunity for that court to redeem itself by retreating from its extremist position of rubber-stamping anything and everything that New York condemnors come up with. This is not hyperbole. How bad can it get? Pretty bad. Recall the infamous Rosenthal & Rosenthal case in which a federal court in New York ruled that even if, as alleged by the property owner, the redevelopment project was tainted by corruption taking the form of favoritism intended to confer a windfall on politically well-connected folks, whereby project boundaries were drawn so as to include a taking of the subject property for their benefit, that would not affect the “public use” nature of the taking and would not be a proper reason to interdict the taking.

But in the Kaur case, the New York Appellate Division did examine the unseemly facts underlying the decision to condemn and found them to give rise to a miasma of favoritism, conflict of interest, procedural mistreatment of the condemnees, and deliberate blighting of the area. What now? Can New York’s highest court now ignore these revelations, and pretend that it’s business as usual? We hope not.

Eminent domain right-to-take law contains much judicial language to the effect that the decision to take and for what public purpose, which land to take and how much of it to take, is a decision properly made by the condemnor, not the courts. But usually that decisional law also contains language to the effect that there is an exception to this rule: courts will intervene and will interdict the taking in cases involving fraud, bad faith or abuse of discretion by the condemnor. Judging from Justice Catterson’s forceful opinion in Kaur, the Columbia University caper would seem to give rise to just such a situation.

So what we have here is a question of whether the increasingly questionable deferential judicial view can be stretched so far as to approve such evident misconduct, and pretend that it has not occurred when it plainly has. Wait and see.

One more thing. We can’t help getting a chuckle out of seeing the pontifications on this subject by folks who — if Lexis is to be believed — have never handled a reported eminent domain case, but who purport to speak with the voice of authority. Mind you, there is nothing wrong with “book learning.” It’s just that in this field (as in criminal law, for example) book learning unleavened by experience and by an understanding of the practices and realities of the field can be unhelpful. As the California Supreme Court once confessed, judicial policies followed in eminent domain cases are often concealed behind a veil of concept.

Don’t miss the New York Appellate Division opinion by Justice Catterson, just handed down (2009 NYSlip Op 08976 (Dec. 3, 2009), holding the proposed eminent domain taking in Manhattanville for the expansion of Columbia University, to be an impermissible attempt to take private property for private use.

What makes this opinion – In re Parminder Kaur v. N.Y. State Urban Dev. Corp. — outstanding is its detailed exposition of the chicanery involved in this caper, including everything from record manipulation, due process violations, all the way to encouraging physical blighting of the project area. This is a must read.

You will undoubtedly hear more about this decision, but for now check it out for yourself. It’s a good read if ever there was one. For the text of the opinion go to http://tinyurl.com/yf7d98d